State v. Arellano-Sanchez

                                       72

 Argued and submitted April 25, 2019; convictions on Counts 1 and 6 reversed
       and remanded, remanded for resentencing, otherwise affirmed
                             February 3, 2021


                    STATE OF OREGON,
                     Plaintiff-Respondent,
                               v.
            JOSE RAFAEL ARELLANO-SANCHEZ,
                    Defendant-Appellant.
               Washington County Circuit Court
                    16CR70262; A165375
                                   

     Defendant appeals from a judgment of conviction for one count each of
first-degree robbery, ORS 164.415 (Count 1); second-degree assault, ORS
163.175 (Count 2); fourth-degree assault, ORS 163.160 (Count 3); unlawful use
of a weapon, ORS 166.220 (Count 6); menacing, ORS 163.190 (Count 7); first-degree burglary, ORS 164.255 (Count 8); attempted first-degree arson, ORS
164.325 (Count 10); and second-degree criminal mischief, ORS 164.354 (Count
11). Raising four assignment of error, defendant first asserts that the trial court
erred in denying his motion to exclude gang-related evidence. The state concedes
defendant’s second assignment in which he contends that the trial court erred
in reconstituting defendant’s criminal history score. In defendant’s combined
third and fourth assignments of error, he contends that the trial court erred in
failing to provide a jury concurrence instruction on Counts 2 and 3. Defendant
also raises three supplemental assignments of error challenging nonunanimous
verdicts for Counts 1 and 6 under State v. Flores Ramos, 

, 

 (2020). The state concedes that error. Held: Defendant’s first assignment
of error was rejected without discussion and the Court of Appeals accepted the
state’s concession to the second assignment of error. Regarding defendant’s third
and fourth assignments of error, under State v. Teagues, 

, 

 (2016), concurrence instructions are necessitated when single incidents give
rise to separate and distinct injuries, but not when a single incident results in a
“cluster of injuries,” as occurred here.
    Convictions on Counts 1 and 6 reversed and remanded; remanded for resentencing; otherwise affirmed.



    Janelle F. Wipper, Judge.
   Zachary Lovett Mazer, Deputy Public Defender, argued
the cause for appellant. Also on the briefs was Ernest G.
Lannet, Chief Defender, Criminal Appellate Section, Office
of Public Defense Services.
   Doug M. Petrina, Assistant Attorney General, argued
the cause for respondent. Also on the briefs were Ellen F.
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Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
  Before Lagesen, Presiding Judge, and DeVore, Judge, and
James, Judge.
  JAMES, J.
  Convictions on Counts 1 and 6 reversed and remanded;
remanded for resentencing; otherwise affirmed.
74                                          State v. Arellano-Sanchez

           JAMES, J.
        Defendant appeals from a judgment of conviction
for one count each of first-degree robbery, ORS 164.415
(Count 1); second-degree assault, ORS 163.175 (Count 2);
fourth-degree assault, ORS 163.160 (Count 3); unlawful use
of a weapon, ORS 166.220 (Count 6); menacing, ORS 163.190
(Count 7); first-degree burglary, ORS 164.255 (Count 8);
attempted first-degree arson, ORS 164.325 (Count 10); and
second-degree criminal mischief, ORS 164.354 (Count 11).1
On appeal, defendant raises four assignments of error and
three supplemental assignments of error.
          Defendant’s supplemental assignments raise nonunanimous jury challenges. The trial court instructed the
jury, “[t]his being a criminal case, 10 or more jurors must
agree on your verdict.” Defendant did not object to that
instruction or request a unanimous jury instruction. The
jury returned an 11-to-1 verdict on Count 1 and a 10-to-2
verdict on Count 6. The remaining counts were unanimous.
Defendant did not object to the court’s receipt of the nonunanimous verdicts on Counts 1 and 6. In his second and third
supplemental assignments of error defendant raises a plain
error challenge to the receipt of nonunanimous verdicts on
Counts 1 and 6. The state concedes the error. We accept the
concession, and we exercise our discretion to reverse and
remand on Counts 1 and 6. Ramos v. Louisiana, 

,

, 

 (2020); State v. Ulery, 

, 

 (2020) (“[D]efendant has a significant interest in a new trial before a jury properly instructed
that it must be unanimous to convict. And, though the state
has a competing interest in avoiding the expense and difficulty associated with a retrial, the balance weighs in defendant’s favor.”).
         In defendant’s first supplemental assignment of
error, he challenges the trial court’s giving of a nonunanimous

    1
      Although the state also charged defendant with an additional count each
of unlawful use of a weapon, ORS 166.220 (Count 4), and menacing, ORS 163.190
(Count 5), the trial court granted the state’s motion to dismiss those charges.
Additionally, the trial court merged the verdicts on Count 8 and Count 9, which
were both charges for first-degree burglary, ORS 164.255, and entered a single
burglary conviction on Count 8.
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jury instruction as reversable error even as to those counts
on which the jury returned a unanimous verdict. Defendant’s
argument is foreclosed by State v. Flores Ramos, 

, 

 (2020) (“[T]he trial court’s instruction to
the jury that it could return a nonunanimous verdict did not
amount to a structural error and was harmless beyond a
reasonable doubt.”).
         Turning to the assignments of error raised in defendant’s opening brief, we reject the first without discussion.
Regarding defendant’s second assignment of error, although
we are already reversing the conviction by nonunanimous
verdict on Count 6, pursuant to Ramos, because the issue
could arise on remand, we note that the parties on appeal
agree that the trial court erred in reconstituting defendant’s
criminal history score, as to Count 6.
         As to defendant’s combined assignments of error
three and four, defendant asserts that the trial court erred
in denying his request for jury concurrence instructions on
Count 2, second-degree assault, and Count 3, fourth-degree
assault. The state concedes that defendant properly preserved a request for a concurrence instruction as to Count 2.
Defendant acknowledges that his request for a jury concurrence instruction for Count 3 is unpreserved and urges
this court to, nonetheless, review for plain error. As we will
explain, a concurrence instruction was not required for
either assault charge in this case.
         The pertinent facts are undisputed. R met defendant when defendant showed up at R’s house drunk and said
that he had no place to live. R was living with his wife, their
five children, and one grandchild, but he had an extra bedroom at his onsite autobody shop. Defendant agreed to keep
the shop clean in exchange for housing and living necessities. Defendant lived and worked there for a few months,
but R asked defendant to leave after he had attacked two
other people at the shop, chased a person with an axe, and
destroyed customers’ car batteries.
        About a week after R asked defendant to leave, R
awoke to find pink-painted graffiti defendant painted on the
side of R’s house and fence that read “12th Street,” “payback,” and “RIP Junie,” which was R’s nickname. On the
76                                State v. Arellano-Sanchez

back door of his house, R also saw a cross, other symbols,
and the number “777,” which he had previously caught defendant tagging using the same paint color. Shortly thereafter,
R, his wife, and their eight-year-old daughter left home to
get paint removal supplies and to drop the daughter off at
school, but she forgot her backpack, so they turned around
and went home.
        When they arrived home, R saw the front door open
and defendant inside. Defendant came out of the house with
R’s property in his hands, including high-valued items from
underneath R’s bed. R confronted defendant. Defendant
dropped the items he was carrying, charged at R, and pulled
out a knife with a four- or five-inch blade. R ran around
the car and told his wife to drive away. R testified that he
intended to kill defendant.
         Defendant moved toward the daughter’s side of
the vehicle, and R’s wife tried to keep the daughter’s car
door closed. R’s wife got out of the car and defendant turned
toward her, holding the knife over his head with the blade
pointing downward. She pushed defendant away, got back in
the car, and closed the door.
         Defendant ran at R again. R ran toward the fence,
where he had some lumber that he was going to use as a
weapon, but defendant was too close. Defendant cut R’s head.
R threw defendant through the fence. They fell together, and
R landed on top of defendant. R hit his head on the fence post
and was dazed from the impact. Defendant swung the knife
at R 10 or 11 times, maybe more, and said that he was going
to kill R. R punched defendant a few times. Eventually, R
flipped defendant over, put him in a chokehold, and held him
down. Defendant freed his hand. R pushed the knife blade
toward defendant; R thought defendant was cut in the process. R and defendant struggled to gain control of the knife,
cutting R’s finger and hand. R told defendant to let go of the
knife. Defendant responded, again, that he was going to kill
R. R punched defendant a few more times, defendant let go
of the knife, and R threw it away.
        The entire encounter lasted about five minutes until
police arrived. A passerby and a neighbor’s security camera recorded videos of parts of the incident. After the police
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arrived, R went inside the house and saw that his daughter’s
room and the living room were destroyed. R smelled and
saw gasoline. Gas was all over his daughter’s bed, the living
room couch, and the floor. Couch cushions were overturned,
and electronics were on the floor. The bathroom window was
open, and the screen was cut. The repairs were valued at
$12,000 to $13,000.
         Washington County Sheriff’s Deputy James Berning
arrived on the scene and tried to interview R, but R could
not focus because he was so upset. Berning also interviewed
R’s wife, who was in a daze or in shock. They left the house
when fire personnel told them it was dangerous to be inside
because of the gasoline fumes.
         Defendant was taken into custody and given treatment for a cut on his left shoulder. Police found a picture
of R’s daughter with defendant’s belongings and pink paint
underneath his fingernails. A forensic analysis of defendant’s clothing revealed the presence of ignitable liquid in
the “gasoline class” on each item, at levels consistent with
spillage on the clothing rather than vaporous contact. An
accelerant detection dog alerted to a lighter and a pair of
rubber gloves marked with pink paint matching the graffiti
on the house. Officers also located a Smith & Wesson knife
under R’s vehicle in the driveway. R found defendant’s backpack in R’s Cadillac that was parked at his autobody shop. It
contained ropes, duct tape, zip ties, and other items. Officers
also found a can of pink spray paint by the backpack and a
sheath, matching the Smith & Wesson knife, on the driver’s
side floorboard. While awaiting trial, defendant also drew
similar graffiti symbols on the wall of his jail cell.
         R suffered numerous cuts and lacerations, some on
his head and hands. Both of the tendons in R’s middle finger
were severed and he suffered nerve damage. At the time of
trial, he had undergone two surgeries to repair his finger.
He could not engage in work the same way due to the injury.
He required staples, stitches, or glue to close the wounds on
his head.
        At trial, after the close of the state’s case, defendant argued that, as to Count 2 (second-degree assault),
the state’s evidence included a series of injuries to R and
78                                      State v. Arellano-Sanchez

that either the court should require the state to elect which
injury it was proceeding on as the basis for Count 2, or that
the court should give a jury concurrence instruction directing the jury that it must agree, under State v. Boots, 

, 

 (1989), cert den, 

 (1993),
on which factual occurrence was the basis for each of the
charges against him.
          The state responded that it was too early to require
an election and that the proper time for election is at the
close of all evidence. Because defendant had not yet presented his case and had not yet elected whether to testify,
the factual record could substantially change, which could,
in turn, cause the state to alter its election if made prematurely. Defendant agreed to raise his argument again at the
close of the evidence and to make his motion for judgment of
acquittal at that time.
        After defendant rested its case, defendant returned
to his argument that the court should give a concurrence
instruction or require an election for both Counts 1 and 2.
The state made its election pertaining to Count 1. Regarding
Count 2, the parties disputed whether an election or a jury
concurrence, or neither, was required, both citing State v.
Teagues, 

, 

 (2016). As the state
argued:
         “[PROSECUTOR]: That’s when an election is required
     or a Boots concurrence instruction’s required. But the
     Court of Appeals specifically holds that when it is based on
     a single continuous course of conduct resulting in a single
     or a cluster of injuries that that does not require an election
     or a Boots concurrence instruction.”
           The court agreed with the state:
         “THE COURT: The way the Court looks at it is it—
     there are separate injuries, but it was all in the course of
     trying to get the knife away from the defendant and so it’s
     all one continuous act. And so there does not need to be an
     election or concurrence instruction, so one isn’t going to be
     given.”
         During the state’s closing arguments, the state
repeated the facts on the record that could lead the jury to
convict defendant on the assault charges:
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      “The defendant decided to go after [R’s wife] with that
   dangerous weapon to place her in fear of imminent serious
   physical injury. At that point in time [R’s wife] is able to
   draw the defendant’s attention back to him.
      “And that’s when the Assault in the Second Degree and
   the Assault in the Fourth Degree occur. The defendant
   turns his attention towards [R] using the knife, causes
   injury to [R]. That physical injury is also in the immediate
   presence of and witnessed by [R’s daughter], the eight-year
   child who is in the vehicle.
      “And so, again, one course of conduct resulting in two
   separate crimes, Assault in the Second Degree based on
   the use of a dangerous weapon and Assault in the Fourth
   Degree for causing physical injury in the presence of
   a minor child. For those reasons, I ask that you find the
   defendant guilty of all counts, thank you.”
         The trial court instructed the jury that 10 or more
of them must agree on the verdict, but it did not instruct the
jurors that they had to agree on the occurrence that constituted the second-degree assault. This appeal followed.
         We review the trial court’s failure to give a requested
instruction for legal error. State v. Brown, 

,

 (1990). “Legal error occurs when the court
refuses to give an instruction that correctly states the law
… and is supported by evidence in the record viewed in the
light most favorable to establishment of the facts necessary
to require the instruction.” State v. Branch, 

, 

 (2006) (internal citations omitted).
         The right to jury concurrence arises from Article I,
section 11, of the Oregon Constitution. State v. Ashkins, 

, 

 (2015). We recently highlighted in
State v. Payne, 

, 

 (2019), that
in Oregon criminal trials, jury concurrence is necessitated
in two situations:
   “ ‘One situation occurs when a statute defines one crime
   but specifies alternative ways in which that crime can be
   committed.’ State v. Pipkin, 

, 

   (2013). The other situation occurs ‘when the indictment
   charges a single violation of a crime but the evidence permits the jury to find multiple, separate occurrences of that
   crime.’ 

. In that second scenario, decisions by this
80                                    State v. Arellano-Sanchez

     court, as well as the Oregon Supreme Court, have indicated
     that a party can address the issue either by requesting a
     jury concurrence instruction, or alternatively, ‘can ask the
     state to elect the occurrence on which it wishes to proceed
     and, in that way, limit the jury’s consideration to a single
     occurrence.’ Id.”
(Emphasis omitted.)
         When a party files a motion for concurrence election
and jury instruction, that party has made a request to charge
the jury. 

. “It has been clear in Oregon, at least since
[Boots, 

], that a jury must be instructed concerning the necessity of agreement on all material elements of a
charge to convict.” State v. Lotches, 

, 

 (2000), cert den, 

 (2001). Under Boots, when
the state presents evidence of multiple factual occurrences
which could each independently support a guilty verdict on
a single charge, it is error for the court not to instruct the
jury on “the necessity of agreement on all material elements
of a charge in order to convict.” Lotches, 

; State
v. Basargin, 

, 

 (2007). That
concurrence instruction is required “when there is a real
possibility of juror confusion with respect to the evidence as
it relates to each charge.” State v. Garcia, 

, 

, rev den, 

 (2007).
        The state’s argument, both before the trial court
and on appeal, is that no concurrence instruction is required
“when the state relies on a single course of conduct to prove
the elements of the offense.” In support, the state relies primarily on State v. White, 

, 

(1992) (menacing), State v. Greeley, 

, 

 (2008) (reckless driving), and Teagues, 

. We address each in turn.
        In White, we considered the need for concurrence
instruction in the context of a prosecution of menacing. We
held that
     “no one act must be proven to support a conviction for menacing under ORS 163.190(1):
           “ ‘A person commits the crime of menacing if by word
        or conduct the person intentionally attempts to place
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      another person in fear of imminent serious physical
      injury.’
   “The statute requires only that defendant acted by ‘word or
   conduct’ and intentionally attempted to place [the victim]
   in fear of imminent serious physical injury. The gravamen
   of the crime is the intentional attempt to place another
   person in fear. Defendant could have done several different
   acts and, if he intended thereby to attempt to place Keeney
   in fear, would have committed menacing.”

 (emphasis in original).
        In Greeley, we considered the need for a concurrence
instruction in the context of a prosecution for reckless driving. We first reiterated that “it is not ‘factual details, such
as whether a gun was a revolver or a pistol and whether it
was held in the right or the left hand’ that the jury must
agree on, but the ‘facts that the law (or the indictment) has
made essential to a crime.’ ” Greeley, 

 (quoting Boots, 

). There, the crime in question was
defined by ORS 811.140(1), which provides:
      “A person commits the offense of reckless driving if the
   person recklessly drives a vehicle upon a highway or other
   premises described in this section in a manner that endangers the safety of persons or property.”
And in that case, the charging instrument alleged:
       “The defendant, on or about June 21, 2005, in Jefferson
   County, Oregon, did unlawfully and recklessly drive a vehicle upon a public highway, to-wit: Highway 97 in a manner
   that endangered the safety of persons or property; contrary
   to statute and against the peace and dignity of the State of
   Oregon.”
Greeley, 

.
         We concluded that, in light of the gravamen of reckless driving, and how the charge was framed in the specific
case, a concurrence instruction was not required:
   “Violation of the reckless driving statute requires that a
   defendant have ‘recklessly drive[n] a vehicle upon a highway or other premises described in this section in a manner that endangers the safety of persons or property.’ ORS
82                                     State v. Arellano-Sanchez

     811.140. Defendant could have committed several acts that,
     alternatively, constituted evidence of a single element—
     recklessness—in an episode of driving that lasted no more
     than four minutes. As in White, the state was entitled to
     rely on the entire course of defendant’s driving to establish
     the element of recklessness.”

 (brackets in Greeley).
         Finally, in Teagues, we considered the applicability
of White and Green to the context of assault. There, “the state
charged defendant with fourth-degree assault, among other
crimes. At trial, the state contended that the jury could convict defendant of the assault based either on evidence that
defendant had caused the alleged victim to scrape her knee
or on evidence that he had choked her.” Teagues, 

.
Again, we began with the statute at issue,
     “ORS 163.160(1)(a), which provides that a person commits
     fourth-degree assault if the person ‘[i]ntentionally, knowingly, or recklessly causes physical injury to another[.]’ As
     defined by ORS 163.160(1), fourth-degree assault has three
     elements: (1) a culpable mental state, (2) causation, and
     (3) physical injury. Here, the state alleged that defendant
     ‘did unlawfully and knowingly cause physical injury to [the
     victim].’ ‘Physical injury’ means ‘impairment of physical
     condition or substantial pain.’ ORS 161.015(7).”

.
          We noted that “the count at issue charged defendant
with a single crime, but the state presented evidence of multiple, separate occurrences of that crime.” 

. “Those
theories were based on evidence of two different actions,
which occurred at different times and in different locations
and resulted in different injuries.” 

 In particular, we distinguished the facts in Teagues from other potential assault
prosecutions, noting, “[t]he state did not rely on one course
of conduct establishing a single injury or a cluster of injuries; rather, it relied on two distinct instances of conduct by
defendant, causing two distinct injuries.” 

.
        Focusing on the gravamen of assault, we considered
what the jury was asked to determine in such a case:
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   “To determine whether the evidence of the first occurrence
   supported a guilty verdict on the assault count, the jury
   would have had to determine whether defendant actually
   caused [the victim] to fall and, if so, whether the injury to
   her knee constituted a physical injury for the purposes of
   the assault statute, that is, whether it impaired [the victim’s] physical condition or caused her substantial pain.
   But, to determine whether the evidence of the second
   occurrence supported a guilty verdict, the jury would have
   had to determine whether defendant actually choked [the
   victim] and, if so, whether, in doing so, he impaired her
   physical condition or caused her substantial pain. The factual issues relate to the elements of the charged assault.”
Id. at 191-92.
        We concluded that “the gravamen of the fourth-degree assault charge was the unlawful and knowing
causation of physical injury.” Id. at 193. There, the state
relied on “two distinct instances of conduct by defendant,
causing two distinct injuries.” Id. Accordingly, we held that
a concurrence instruction was required.
        Applying those principles here, we begin with the
charging instrument. The state charged defendant with
assault in the second degree (Count 2), and assault in the
fourth degree (Count 3). The indictment alleged:
   “COUNT 2: As a separate act and transaction but as part
   of crimes that are of the same or similar character and a
   common scheme and plan as Count 1: The defendant, on or
   about November 3, 2016, in Washington County, Oregon,
   did unlawfully and knowingly cause physical Injury to [R]
   by means of a dangerous weapon, to wit: a knife.
   “COUNT 3: As part of the same act and transaction and
   part of crimes that are of the same or similar character and
   a common scheme and plan as Count 2: The defendant, on
   or about November 3, 2016, in Washington County, Oregon,
   did unlawfully and knowingly cause physical injury to [R],
   and the assault was committed in the immediate presence
   of or witnessed by the minor child of the above named victim, the minor stepchild of the above named victim or a
   minor child residing within the residence of the victim.”
        Assault in the second degree is defined by ORS
163.175(1):
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        “A person commits the crime of assault in the second
     degree if the person:
        “(a) Intentionally or knowingly causes serious physical
     injury to another;
         “(b) Intentionally or knowingly causes physical injury
     to another by means of a deadly or dangerous weapon; or
         “(c) Recklessly causes serious physical injury to
     another by means of a deadly or dangerous weapon under
     circumstances manifesting extreme indifference to the
     value of human life.”
         As charged in this case, assault in the fourth degree
is defined by ORS 163.160(1) and (3):
        “(1) A person commits the crime of assault in the
     fourth degree if the person:
        “(a) Intentionally, knowingly or recklessly causes
     physical injury to another;
         “(b) With criminal negligence causes physical injury
     to another by means of a deadly weapon …
        “…
        “(3)(a) The assault is committed in the immediate
     presence of, or is witnessed by, the person’s or the victim’s
     minor child or stepchild or a minor child residing within
     the household of the person or victim.”
For both statutes, the state may establish the “physical
injury” element by proving either “impairment of physical
condition or substantial pain.” ORS 161.015(7).
         On appeal, defendant points to three separate injuries which, he contends, could satisfy the material elements
of assault: (1) defendant’s initial cut to R’s head; (2) R hitting
his head on the fence post; and (3) defendant’s second cut to
R’s hand and finger. Defendant asserts that, although the
timeline of these injuries was compressed and occurred in
one location, under Teagues, “[b]ecause the two occurrences
were temporally and spatially distinct and involved different injuries, they gave rise to different factual questions for
the jury to resolve in order to determine whether the state
had proven the elements of assault.” Teagues, 

. The state contends that each of the injuries took place
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during a single course of conduct, and evidence the type of
“cluster of injuries” foreshadowed in Teagues. We agree with
the state.
         The gravamen of both assault charges in this case is
the unlawful and knowing causation of physical injury. But
here, the state is not relying upon multiple distinct instances
of conduct by defendant, or multiple distinct injuries. There
is no dispute among the parties that a single altercation
occurred between R and defendant, that it involved a knife,
that it was of a brief duration and unbroken by any lapse
of combat, that it involved numerous cuts and slashes, and
that it resulted in injury to R. The conduct involved here
is uniform in character and continuous, not conduct that is
“temporally and spatially distinct.” Mellerio v. Nooth, 

, 425, 

 (2016), rev den, 

 (2017).
         A single incident of fisticuffs, involving three jabs
to the head, generally does not require a concurrence
instruction as to which specific one of the three blows was
the assaultive conduct. If a defendant shoots a victim with
three bullets in succession, a jury concurrence instruction
is generally not required as to which specific bullet was the
assaultive conduct. As we have explained in the context of
domestic assault, concurrence instructions are necessitated
when “factual questions would arise should the jury consider separate incidents of choking, pushing, and grabbing.”
State v. Theriault, 

, 

 (2019)
(emphasis added). We have never held a concurrence instruction required in the context of a single instance of choking or
pushing, requiring the jury to concur on which exact shove
in the single encounter constituted the assaultive conduct.
         Concurrence instructions are necessitated when
single incidents give rise to separate and distinct injuries, but not when a single incident results in a “cluster of
injuries.” Teagues, 

. Here, the injuries,
all sustained during the single encounter, are all slashing
injuries—knife wounds—and are not “distinct with respect
to form and causation.” Theriault, 

.
Multiple slashing wounds from a single unbroken and continuous knife attack is precisely the “cluster of injuries”
meant in Teagues.
86                                State v. Arellano-Sanchez

         The Boots requirement of jury unanimity is triggered when the essential facts required to establish an
offense are conceptually distinct or when a jury would face
characterization differences in deciding between them.
That unanimity requirement means that a jury must agree
on more than just a defendant’s guilt. It also must agree
on “just what a defendant did.” State v. Rolfe, 

, 

 (2020) (quoting Boots, 

). “The unanimity rule requires jurors to be in substantial agreement as to just what a defendant did as a step
preliminary to determining whether the defendant is guilty
of the crime charged.” Boots, 

-81 (citing United
States v. Gipson, 553 F2d 453, 457-58 (5th Cir 1977)); see
also State v. Lotches, 

 (“[T]he unanimity
rule requires that the jury agree as to ‘just what defendant
did’ to bring himself within the purview of the particular
subsection of the aggravated murder statute under which he
was charged.” (Quoting Boots, 

.)).
        Here, based on this record, we do not perceive that
the jury would be confused, or in potential disagreement,
as to what defendant did. Again, there is no real dispute
that defendant and R engaged in a continuous, unbroken,
and brief combat involving a knife, and in that encounter
R suffered a cluster of wounds—multiple cuts and slashing wounds from the blade. On this record, no concurrence
instruction was required.
       Convictions on Counts 1 and 6 reversed and
remanded; remanded for resentencing; otherwise affirmed.